IRBs: applicant makes case for IRBs; applicant provided all necessary and requested information to insurer; insurer must reinstate benefits
RS was a passenger injured in a “semi-truck-rig” roll-over on a black-iced bridge on October 29, 2011 and sought and received benefits under the Statutory Accident Benefits. Wawanesa stopped or suspended the IRBs on October 9, 2016 because RS failed to provide an updated disability certificate, an updated catastrophic injury assessment, a list of his then-current health-care providers, and descriptions of the medical treatment he was receiving. He had been asked by Wawanesa to provide these documents in letters dated July 12, 2016, August 9, 2016, and September 12, 2016. When he failed to provide them, Wawanesa suspended the benefits by way of an explanation of benefits letter dated October 9, 2016. That suspension was based on RS’s non-compliance with Wawanesa’s requests, and not explicitly on a lack of entitlement to benefits. RS applied to the LAT after Wawanesa stopped IRBs.

RS eventually provided an updated disability certificate to Wawanesa on March 24, 2017, together with evidence of his regular medical examinations and treatment by Drs. Pattison, Baird, and Hartford during the autumn of 2016 and winter of 2017. RS provided an updated catastrophic injury examination done by Dr. George Vincent on June 12, 2017. The issue of whether RS’s injuries are catastrophic is currently before Ontario’s Financial Services Commission.

Despite providing the information requested, Wawanesa did not reinstate RS’s IRBs on the grounds that they had been permanently discontinued due to RS’s failure to provide required information to Wawanesa. Wawanesa did not provide evidence of how or when, after having received the updates described in the last paragraph, it communicated this position to RS.

Issue:

Is RS entitled to receive an IRB in the amount of $400.00 per week for the period October 9, 2016 to date and ongoing, a benefit that was discontinued because of a lack of documentation.

In order to decide this issuer one must consider:

Has RS answered requests from Wawanesa for further information appropriately and in a timely manner?

Do sub-sections 33(1), 57(2), and 57(4) of the Schedule justify Wawanesa’s permanent termination of RS’s IRBs on October 9, 2016?

RS does not dispute that he did not send the documents requested by Wawanesa prior to the suspension of his IRBs on October 9, 2016. In fact, his counsel at the time wrote to Wawanesa and specifically advised it that RS would not provide the requested documents. RS does not submit that Wawanesa’s request for documents, including an updated disability certificate, was unreasonable. Moreover, neither party made submissions about a reasonable explanation for RS’s refusal to provide medical documentation. Accordingly, I find that RS did not provide the requested information in a timely manner.

The Schedule sets out the consequences for failing to provide documents within a reasonable time. It relieves Wawanesa of the obligation to pay benefits during any period of non-compliance with a request for further information. Applying that section to the current facts, I find that Wawanesa was entitled to suspend the income replacement benefit on October 9, 2016. Wawanesa was entitled to suspend payment until RS complied with its request for documents.

Do sub-sections 33(1), 57(2), and 57(4) of the Schedule justify Wawanesa’s permanent discontinuation of RS’s IRBs as of October 9, 2016?

Had Wawanesa relied only on the provisions of section 33(1), the impact of section 33(6) would have been that Wawanesa would have had an obligation to recommence payment of the benefit once RS complied with its request. However, Wawanesa also relies, and has done so since its October 9, 2016 explanation of benefits letter, on the provisions of subsections 57 (2), (4), and (7). Subsection 57(2) specifies that a person who is entitled to an income replacement benefit “shall obtain such treatment and participate in such rehabilitation as is reasonable, available and necessary [to return to work]”, while subsections 57(4) and (7) empower the insurer to stop payment of benefits if the insured person fails to obtain treatment. Because Wawanesa’s requests for updated medical documentation and submissions to ongoing treatment were reasonable, the March 24, 2017 date of RS’s delayed compliance with those requests is the date that benefits should have been reinstated. However, Wawanesa also takes the position that RS is not currently undergoing treatment and that this disentitles him to the income replacement benefit he seeks. I disagree with that submission, on the basis that RS has had medical care in recent months and that Wawanesa has known about that care since late-March of 2017. Wawanesa has not proved its position with respect to RS’s failure to obtain treatment.

RS provided evidence to Wawanesa of his treatment during the fall of 2016 and the winter of 2017, together with an updated disability certificate on March 24, 2017. That material demonstrates continuing medical attention.

Not explicitly stated but implied in Wawanesa’s submissions is the contention that RS must have suffered a catastrophic impairment to qualify for continuation or extension of his IRBs.

The designation of catastrophic impairment is not a pre-requisite to entitlement to IRBs, post-104 weeks of an accident or otherwise.

The tests for IRBs are set out in the Schedule. There is a test for entitlement to benefits for the first 104 weeks following an accident, and a more stringent test for entitlement to benefits after the expiry of 104 weeks post-accident. Since more than 104 weeks have passed since the accident, RS would be entitled to IRBs if he suffers a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience. There is no reference in this wording to a finding of catastrophic impairment. Thus, RS is entitled to IRBs as long as he meets this test.

RS had provided the relevant medical information to Wawanesa by March 24, 2017. I find that the date for the reinstatement of benefits is March 24, 2017, not June 12, 2017 when he was retested for catastrophic impairment.

Pursuant to the authority vested in me under the provisions of the Schedule Wawanesa is directed to recommence payment to RS of IRBs on March 24, 2017 at the rate of $400.00 per week. Interest is also owed under the Schedule.

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us toll-free at 1-866-414-4878.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.

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